B-170964, APR 14, 1971, 50 COMP GEN 729

B-170964, APR 14, 1971, 50 COMP GEN 729

SUBSISTENCE - PER DIEM - MILITARY PERSONNEL - TEMPORARY DUTY - EN ROUTE TO NEW DUTY STATION A MARINE OFFICER DETACHED FROM HIS PERMANENT DUTY STATION WHO BEFORE REPORTING TO HIS PERMANENT OVERSEAS DUTY STATION IS ORDERED TO PERFORM TEMPORARY DUTY AT A LOCATION APPROXIMATELY 6 MILES FROM HIS RESIDENCE LOCATED AT THE OLD STATION WHERE HE CONTINUED TO RESIDE AS NO GOVERNMENT QUARTERS WERE AVAILABLE AT THE TEMPORARY DUTY STATION MAY BE PAID PER DIEM FOR THE PERIOD OF THE TEMPORARY DUTY SINCE PRIVATELY PROCURED QUARTERS AT OR IN THE VICINITY OF A MEMBER'S DUTY STATION ARE TO BE REGARDED AS A PART OF HIS STATION ONLY BY REASON OF HIS ASSIGNMENT AT THAT STATION. THEREFORE, THE OFFICER DETACHED FROM HIS PERMANENT DUTY STATION ENTERED A TRAVEL STATUS WHEN HE PROCEEDED TO HIS TEMPORARY DUTY STATION OUTSIDE THE CORPORATE LIMITS OF HIS OLD STATION AND IS ENTITLED TO PER DIEM FOR THE PERIOD OF TEMPORARY DUTY PERFORMED EN ROUTE TO HIS NEW PERMANENT STATION, NOTWITHSTANDING HE TRAVELED DAILY FROM HIS OLD RESIDENCE. 35 COMP. GEN. 547, MODIFIED.

TO LIEUTENANT COLONEL I. L. RAY, UNITED STATES MARINE CORPS, APRIL 14, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 22, 1970, FILE REFERENCE ILR/DE 7200.4, FORWARDED HERE BY FIRST ENDORSEMENT OF THE COMMANDANT OF THE MARINE CORPS DATED OCTOBER 20, 1970, REQUESTING DECISION AS TO THE ENTITLEMENT OF MAJOR JOHN M. SOLAN, 074102, U.S. MARINE CORPS, TO PER DIEM WHILE PERFORMING TEMPORARY DUTY AT THE MARINE CORPS AIR STATION, EL TORO (SANTA ANA), CALIFORNIA, DURING THE PERIOD FEBRUARY 10 TO APRIL 27, 1970, UNDER THE CIRCUMSTANCES DESCRIBED. YOUR REQUEST WAS APPROVED AND ASSIGNED CONTROL NO. 70-53 BY THE DEPARTMENT OF DEFENSE PER DIEM, TRAVEL AND TRANSPORTATION ALLOWANCE COMMITTEE.

BY PERMANENT CHANGE-OF-STATION ORDERS DATED SEPTEMBER 29, 1969, HEADQUARTERS, UNITED STATES MARINE CORPS, WASHINGTON, D.C., MAJOR SOLAN WAS DETACHED FROM HIS DUTY STATION, CHAPMAN COLLEGE, ORANGE, CALIFORNIA, AND DIRECTED TO PROCEED TO MARINE CORPS AIR STATION, EL TORO (SANTA ANA), CALIFORNIA, FOR TEMPORARY DUTY OF ABOUT 12 WEEKS. UPON COMPLETION HE WAS DIRECTED TO PROCEED TO HIS NEW DUTY STATION OVERSEAS. HE REPORTED AS DIRECTED AND HIS ORDERS WERE ENDORSED THAT GOVERNMENT FACILITIES WERE NOT AVAILABLE AT SANTA ANA, CALIFORNIA.

WHILE ON PERMANENT DUTY AT CHAPMAN COLLEGE, MAJOR SOLAN RESIDED IN SANTA ANA, CALIFORNIA, AND COMMUTED DAILY BETWEEN HIS RESIDENCE AND THE COLLEGE, A ONE WAY DISTANCE OF APPROXIMATELY 2 MILES. WHILE PERFORMING TEMPORARY DUTY AT THE MARINE CORPS AIR STATION, EL TORO (SANTA ANA), HE MAINTAINED THE SAME RESIDENCE AND CONTINUED TO COMMUTE DAILY BETWEEN HIS RESIDENCE AND THE TEMPORARY DUTY STATION, A ONE WAY DISTANCE OF APPROXIMATELY 6 MILES.

IN YOUR LETTER YOU SAY IT APPEARS THAT MAJOR SOLAN WAS PERFORMING TEMPORARY DUTY AT HIS PERMANENT DUTY STATION AND YOU ASK WHETHER HE IS ENTITLED TO PER DIEM FOR THE PERIOD FEBRUARY 10 TO APRIL 27, 1970. FIRST ENDORSEMENT DATED OCTOBER 20, 1970, THE COMMANDANT OF THE MARINE CORPS INVITES ATTENTION TO 35 COMP. GEN. 547 (1956) AS SUPPORTING PAYMENT OF THE CLAIM FOR THE PERIOD AFTER MAJOR SOLAN WAS FIRST ABSENT FROM HIS RESIDENCE IN EXCESS OF 10 HOURS, BUT SINCE HE WAS ABSENT FROM HIS RESIDENCE IN EXCESS OF 10 HOURS ON ONLY FOUR OF THE DAYS INVOLVED, DOUBT IS EXPRESSED AS TO HIS ENTITLEMENT.

THE PERTINENT STATUTE, 37 U.S.C. 404(A), PROVIDES THAT UNDER REGULATIONS PRESCRIBED BY THE SECRETARIES CONCERNED, MEMBERS OF THE UNIFORMED SERVICES SHALL BE ENTITLED TO RECEIVE TRAVEL AND TRANSPORTATION ALLOWANCES FOR TRAVEL PERFORMED UNDER COMPETENT ORDERS UPON A PERMANENT CHANGE OF STATION, OR OTHERWISE, OR WHEN AWAY FROM THEIR DESIGNATED POST OF DUTY.

PARAGRAPH M1150-10A OF THE JOINT TRAVEL REGULATIONS DEFINES A PERMANENT DUTY STATION IN PERTINENT PART AS THE POST OF DUTY OR OFFICIAL STATION TO WHICH A MEMBER IS ASSIGNED OR ATTACHED FOR DUTY OTHER THAN FOR "TEMPORARY DUTY" OR "TEMPORARY ADDITIONAL DUTY," THE LIMITS OF WHICH WILL BE THE CORPORATE LIMITS OF THE CITY OR TOWN IN WHICH THE MEMBER IS STATIONED.

THE CONCEPT THAT A MEMBER'S DESIGNATED POST OF DUTY INCLUDES THE PLACE FROM WHICH HE COMMUTES DAILY TO HIS STATION IS FOR APPLICATION IN SITUATIONS WHERE A MEMBER IS ORDERED TO PERFORM TEMPORARY DUTY WITHOUT BEING DETACHED FROM HIS DESIGNATED POST OF DUTY, TO DETERMINE WHETHER SUCH MEMBER WHO TRAVELS FROM HIS PLACE OF ABODE OUTSIDE HIS DUTY STATION TO HIS TEMPORARY DUTY STATION AND RETURN WAS IN FACT AWAY FROM HIS DESIGNATED POST OF DUTY FOR A PERIOD IN EXCESS OF 10 HOURS AND, HENCE, ENTITLED TO PER DIEM. 34 COMP. GEN. 549 (1955). IN SUCH CIRCUMSTANCES, A MEMBER'S ENTITLEMENT TO PER DIEM OR OTHER TRAVEL ALLOWANCES UNDER THE TEMPORARY DUTY ORDERS CANNOT EXCEED THAT WHICH WOULD NECESSARILY BE DUE FOR TRAVEL FROM HIS OFFICIAL DUTY STATION TO THE TEMPORARY DUTY STATION. B-156199, APRIL 16, 1965.

IN OUR DECISION OF APRIL 5, 1956, 35 COMP. GEN. 547, INVOLVING MEMBERS WHO WERE DETACHED FROM THEIR OLD DUTY STATIONS AND DIRECTED TO PERFORM TEMPORARY DUTY AT NEARBY LOCATIONS BEFORE REPORTING TO THEIR NEW PERMANENT DUTY STATIONS, WE ALSO APPLIED THE CONCEPT THAT THE PLACE OF ABODE AT THE OLD STATION WAS A PART OF THE DUTY STATION FOR PURPOSES OF PER DIEM. NONE OF THE MEMBERS CHANGED HIS RESIDENCE DURING THE PERIOD OF TEMPORARY DUTY. WE HELD THAT WHEN THE MEMBERS WERE DETACHED FROM THEIR OLD STATIONS AND TRAVELED TO THE DESIGNATED TEMPORARY DUTY STATION FOR THE PERFORMANCE OF SUCH DUTY WHICH REQUIRED AN ABSENCE FROM THEIR OLD STATIONS FOR A PERIOD IN EXCESS OF 10 HOURS, THEY ENTERED A TRAVEL STATUS AND WERE ENTITLED TO PER DIEM FOR THE TEMPORARY DUTY PERFORMED THEREAFTER.

UPON FURTHER CONSIDERATION OF THE MATTER, WE HAVE CONCLUDED THAT PRIVATELY PROCURED QUARTERS AT OR IN THE VICINITY OF A MEMBER'S DUTY STATION ARE TO BE REGARDED AS A PART OF HIS STATION ONLY BY REASON OF HIS ASSIGNMENT AT THAT STATION. HENCE, WE ARE NOW OF THE OPINION THAT WHEN A MEMBER IS DETACHED FROM HIS DUTY STATION AND THEREAFTER PROCEEDS TO HIS TEMPORARY DUTY STATION OUTSIDE THE CORPORATE LIMITS OF HIS OLD STATION, HE ENTERS A TRAVEL STATUS AND IS ENTITLED TO THE PER DIEM PRESCRIBED IN THE REGULATIONS FOR ORDERED TEMPORARY DUTY EN ROUTE TO A NEW PERMANENT STATION.

UNDER EXISTING REGULATIONS WE ARE REQUIRED TO HOLD THAT EVEN THOUGH SUCH MEMBER CONTINUES TO OCCUPY THE SAME QUARTERS AT HIS OLD STATION AND TRAVELS TO AND FROM HIS TEMPORARY DUTY STATION EACH WEEKDAY HIS RIGHT TO PER DIEM WILL NO LONGER BE REGARDED AS AFFECTED.

TO THE EXTENT THAT 35 COMP. GEN. 547 (1956) AND OTHER DECISIONS ARE INCONSISTENT WITH THE VIEWS EXPRESSED ABOVE, SUCH DECISIONS WILL NO LONGER BE FOLLOWED.

THEREFORE WHEN MAJOR SOLAN WAS DETACHED FROM DUTY AT CHAPMAN COLLEGE, ORANGE, CALIFORNIA, AND REPORTED FOR TEMPORARY DUTY AT THE MARINE CORPS AIR STATION, EL TORO (SANTA ANA), CALIFORNIA, EN ROUTE TO HIS PERMANENT DUTY STATION OVERSEAS, HE ENTERED INTO A TRAVEL STATUS ENTITLING HIM TO PER DIEM COMMENCING ON FEBRUARY 10, 1970, NOTWITHSTANDING THAT HE CONTINUED TO RESIDE AT HIS OLD RESIDENCE.

ACCORDINGLY, PAYMENT ON THE SUBMITTED VOUCHERS, RETURNED HEREWITH, IS AUTHORIZED ON THE BASIS INDICATED ABOVE IF OTHERWISE CORRECT. THE ORIGINAL ORDERS ARE ALSO RETURNED.